Who Owns Public Crime Data?

from the a-case-that-has-it-all dept

We were recently tipped off to a case in the federal courts that raises all sorts of legal issues about some questionable interpretations of the law -- many of which we've discussed here recently. It involves a Utah company, named Public Engines, suing a competitor, named Report See. Public Engines, it appears, contracts with various police departments around the country to get crime data from them, and then they put that data online in various formats. Its main business tends to be working with law enforcement and providing them software and services around that data. But, it also presents the data publicly on the site CrimeReports.com. Apparently, law enforcement agencies pay Public Engines to provide data to the site. Public Engines claims it does work on that data, to "de-identify" it and make it appear in a more user-friendly format. As the company notes, it does not add any editorial on the site and does not include any advertising or seek any additional business from users. The service is basically provided totally free of all that -- but the company makes money from the law enforcement agencies, who pay to take part and to use Public Engines' software.

Along comes Report See. It operates a similar site, called SpotCrime.com. However, its business model is different. It seeks to get the data for free -- combing various other sources and working out deals with law enforcement itself. Its business model is to sell advertising on the site, as well as to work out partnerships with different media properties, who wish to use the data SpotCrime has collected.

You can probably see where this is headed. Report See, not surprisingly, found the publicly available CrimeReports site to be a treasure trove of good data, and began scraping it to include in CrimeSpot. Public Engines took issue with this and demanded Report See stop. Apparently, the company initially agreed to do so, but then soon began scraping the site again. From there a technical one-upmanship battle appears to have ensued. Public Engines kept trying to block the CrimeSpot scraper, and Report See kept adapting its scraper. Also, somewhere along the way, Report See started going to the same law enforcement groups that Public Engines worked with, asking for access to the same data, and pointing out that, as public records, the data should be available under various public records access laws.

And, now, we get to the lawsuit. Public Engines pretty much tries to throw everything at Report See, some of which seems pretty questionable. The one thing that surprised me, actually, was that Public Engines didn't toss in a copyright claim. Thankfully, it seems to have realized that would have gone way too far. But it's other arguments are still pretty problematic.

First, Public Engines pulls out a Computer Fraud and Abuse Act claim. This is the anti-hacking law that we recently discussed, as many lawsuits (and a few judges) have tried to stretch way beyond its intended purpose. The CFAA is supposed to deal with actual malicious hacking -- that is breaking in to a computer system that has been secured. This is a public website we're talking about here. Claiming a CFAA violation is silly and an attempt to extend the law well beyond what it was intended to cover. Allowing CFAA claims on public websites is really problematic.

Second, Public Engines says there's a breach of contract. But, you might point out, Report See and Public Engines have no contract. Indeed. But Public Engines claims that the terms of service on its website represent a valid contract. Again, it seems like Public Engines is stretching the law to claim that a contract has been made here. Even though it notes there's a link to the terms on every page, it never made Report See agree to the contract, and even so there are still some questions about whether or not any "clickthrough" agreement is really binding.

Third, Public Engines pulls out a Utah statute on "anti-cyberterrorism." No, I'm not kidding. Apparently, Public Engines is claiming that by accessing the website without authorization (see the two points above) and then "obtaining CrimeReports.com's intellectual property" in a way that "led to a material diminution in the value of Public Engines' intellectual property," Report See is violating this anti-cyberterrorism law. My question: what intellectual property? Remember, Public Engines knew better than to include a copyright claim. And that's because it holds no copyright on the data. So what intellectual property has actually been obtained here? Public Engines skips over that.

Fourth, Public Engines pulls out a Lanham Act false advertising claim. Again, this appears to be a stretch of the law's purpose. The point of this law is to stop someone from advertising a product as being from Coca-Cola, when it's really Bob's soda. That's to avoid harm to the consumers (remember, the Lanham Act is really about consumer protection) who bought Bob's soda thinking it's Coca-Cola. But here, there's no "confusion" or issue where consumers are likely to be tricked in a damaging way. The data is the same. There's no harm done. The "data" is not "owned" by Public Engines or CrimeReports. It's factual data.

Given all of these points, you had to guess that the next claim from Public Reports was (you guessed it!) our favorite insanity and recently back-from-the-dead legal craze: hot news, which is showing up in all sorts of lawsuits these days, and is an incredibly troubling restriction on free speech and freedom of the press. Remember, Public Reports knows that it has no copyright claim on this data. It's factual data from public agencies about crime. It would have an incredible chilling effect to suggest that such data is covered by the hot news doctrine.

Public Engines still isn't done yet. Its sixth claim is for "interference with a contract," because of Report See's attempts to go to police agencies directly. This, again, seems silly and beyond the scope of the law. It's perfectly normal and basic competition to approach customers of competitors and to try to get deals yourself. That's how business works. Claiming that no one else can try to get this data from law enforcement agencies is ridiculous.

Honestly, the only legal claim that I thought the company might have that made any sense at all, was about the claim that Report See had promised to stop scraping its site, and then changed its mind. But even that might be a tough sell. Of course, we've seen judges make all sorts of crazy rulings on nearly every one of the issues above, and given that it's a local court (Public Engines filed it in its home court), who knows what might happen. But if the court buys any of these arguments it could set really bad and chilling precedents.

Now, you may ask, what should Public Engines be doing in this situation, since it clearly is going through a lot of effort to collect and format this data. That's all true, but it can still compete pretty easily against Report See. If you compare CrimeReports to SpotCrime, you'll quickly realize that CrimeReports is much nicer and much more user-friendly. It's also not weighed down with annoying advertisements everywhere. Anyone who is interested in using such a tool would almost certainly gravitate to CrimeReports over time. It's just a better site, and since it apparently gets the data first, you'd figure it's also more up-to-date.

In other words, CrimeReports should be able to compete effectively in the marketplace. It's disappointing that rather than doing so, it broke out the lawyers.

Separately, this is now the second case we've seen in just the past few weeks that has tried to combine both a hot news claim and a CFAA claim -- and in both cases, these were attempts to stretch the doctrines and the law well beyond intended purposes. It would be nice if the courts quickly realized what's happening and fixed things (either that or Congress came in and got rid of hot news and clearly limited the CFAA -- but don't expect that to happen).

In the end, though, this really does come down to a simple question. Just because one company went through the trouble of collecting factual data from public agencies can it stop others from using it? The US has, on purpose, rejected any sort of "sweat of the brow" concept for protecting intellectual property. It does not, for the most part, recognize "database rights" for this reason. Public Engines is basically trying to replicate a database right by misusing a variety of other laws and doctrines. If we're serious about protecting First Amendment rights, it would be good to see the courts smack down such attempts to stretch the law.

Contract

Under most states' statutes, in order to be valid, a contract must have three elements: (1) an offer, (2) an acceptance, and (3) consideration. Since Public Engines has none of these from Report See, a judge should have no trouble tossing out its arguments regarding a contractual relationship.

Re: Well

Yes, but for some reason a lot of people actually seem to believe that any potential lost revenue stream for any government agency is bad, even if it happens to be good for the actual, you know, U.S. citizens that they purport to serve.

Re: Well

Who are the REAL Content Owners?

[content tone="facetious"]
The MPAA/RIAA always argues that the owners of the content are the creators of that content and no allowance or consideration should be made to the people that catalog, organize, or provide any access to the content through the internet. Both Public Engines and Report See are acting as catalogs or torrents of crime data. So, shouldn't they should wade in on this and argue that royalties be paid (through them with an off the top "handling fee") to the criminals that created the crimes?
[/content]

Re: Who are the REAL Content Owners?

well I stated killing a whole bunch of people while a friend stood nearby yelling "Double-Kill", "Multi-Kill", "Mega-Kill", and then "Ultra-Kill", but then I fell off a ledge. We were both arrested and I demand payment for my information being used to make money. I got a head-shot on my friend, so I'll collect his money too.

It is useful to bear in mind that this is a matter involving two companies, each of which runs a website with governing terms of use. TOUs, while perhaps glossed over by ordinary individuals, are not something that companies treat casually. Even a cursory review of the TOUs for each of these sites quickly reveals that the defendant's site uses a TOU that in several key regards is manifestly overreaching and far more restrictive than the TOU of the plaintiff.

Crime Reports

The police department's information is public, and SpotCrime is welcome to contact all of the police departments they want. CrimeReports.com is a private website and as such they should are entitled to the content on their own private site.
Can you imagine if Engadget.com was constantly copying and pasting TechDirt.com and claiming that it was open to the public and thus free?

Re: Contract

IANAL but to me it seems:

1) In this case the "Terms of Use" IS the offer. 2) The acceptance is the fact that the defendant chose to use the site. 3) The consideration is the information on the site which was provided (which has value).

It seems that the contract argument could be valid. As pointed out by AC below, if TOU have no enforcement value, then why are they used on virtually every site (including the defendant's own site, with similar restrictions)?

Re:

It is useful to bear in mind that this is a matter involving two companies, each of which runs a website with governing terms of use. TOUs, while perhaps glossed over by ordinary individuals, are not something that companies treat casually.

I don't see how that amounts to anything from a legal standpoint. Just because a site puts up a TOU it doesn't mean a damn thing about whether or not it's legally binding as a contract.

Even a cursory review of the TOUs for each of these sites quickly reveals that the defendant's site uses a TOU that in several key regards is manifestly overreaching and far more restrictive than the TOU of the plaintiff.

Totally irrelevant to the case at hand. No one is arguing about the defendants' TOU.

Re: Crime Reports

And you believe Mike would object to this why?? As he has stated numerous times, anyone can copy the information on Techdirt, and, in fact, it has happened before. Mike doesn't even get upset if they fail to give credit as to the source of the info. I don't have links to the many post where this has been stated, but I'm sure someone would be happy to post a link.

Re: Re:

While not binding as precedent for this case that was filed in Utah (a state that is outside of the 9th Circuit), Ticketmaster Corp. v. Tickets.com, Inc. is instructive in situations as here where two companies are competitiors, and one of those companies is in the business of scraping information from the website of the other company.

In a motion for summary judgment filed by Tickets.com, Inc., that portion of its motion dealing with, for lack of a better phrase, a "Click Wrap" license was deemed insufficient on the facts presented at the conclusion of discovery for grant of the motion. It is noteworthy that a portion of the court's order notes the state of affairs that you dismiss as not meaning anything.

While the outcome on the motion may have perhaps been different has the defendant been an ordinary consumer, the fact it was not was viewed as an appropriate consideration. This is hardly surprising given that the parties were competitors operating competing websites, and that such websites commonly employ TOUs. Certainly the defendant in the case associated with this article stands in much the same footing as did Ticket.com, Inc.

My notation concerning the respective TOUs was merely to highlight that each of the two companies use TOUs, certainly will receive a chilly reception from the court should either proclaim "I did not know about this...heck, you have to scroll down to even find the link. And, yes, Your Honor, my website operates in exactly the same manner...but that is deemed irrelevant by at least one noted authority on contract law."

You read much more into my brief comment than was intended, but it is helpful to note that my comments are not pulled out of thin air. I simply do not elaborate given the limitations asociated with and inherent in blog comments.

Re: Re: Contract

> 1) In this case the "Terms of Use" IS the offer.

Nope. Under contract common law and the Uniform Commercial Code, an offer must be clearly communicated to the offeree. Saying that some part of a website that doesn't even have to be accessed or viewed in order to use that site is an offer doesn't meet even the most minimum of standards.

> 2) The acceptance is the fact that the defendant
> chose to use the site.

Nope. The offeree's acceptance can't be construed from an unrelated action that is only deemed acceptance under the terms of the invalid offer described above.

Re:

Re: Re: Crime Reports

If Techdirt (or Mike) want to allow their stories to be taken without being credited for their content, then that is their decision. But in this case when a company has spent thousands of hours preparing this information and listing it, they certainly should have the right to chose if they are willing to allow their content to be taken.
As I said before, the crime stats are public data and if another company wants to spend the thousands of hours contacting the department and organizing the data, then go to it. But taking it from this site and hosting it as your own, is wrong.

Re: Re: Re: Re: Contract

> the defendant appears to have had actual notice
> of the TOU and yet continued to engage in the
> activities complained of.

There's a difference between knowing about the TOS on a site and knowing the exact details presented therein.

Also, it's entirely possible to reject such an offer and still use the site. Just because the TOS says "If you use this site, you're deemed to have agreed to these terms" doesn't mean that's legally binding. An offeror doesn't have the ability to deem and impose agreement on the offeree based on the offeree's actions. In most cases, only *actual* and explicit agreement by the offeree will create a binding contract.

Re: Re: Re: Crime Reports

This case seems analogous to the NY Times forcing the the Pulse app to be removed - both data is public, both essentially scraped the data and used it.

By wrong, I'm assuming you mean morally? Ethically? Just because something is morally or ethically wrong, doesn't mean that it is illegal.

On a side note, I copied the following from spotcrime.com/tos (Accessed 06/15/10 at 2:45pm EST)
"SpotCrime.com Disclaimer: The data made available here has been modified for use from its original source. "

Furthermore, the TOU on crimespot looks like it was copied/pasted or using some really bad boiler plate and the disclaimer is in REALLY TINY font at the bottom (6pt?). The TOU on crimereports is clear and looks specifically written for the site. It also has a separate disclaimer link.

Re: Re: Re: Crime Reports

If Techdirt (or Mike) want to allow their stories to be taken without being credited for their content, then that is their decision. But in this case when a company has spent thousands of hours preparing this information and listing it, they certainly should have the right to chose if they are willing to allow their content to be taken. As I said before, the crime stats are public data and if another company wants to spend the thousands of hours contacting the department and organizing the data, then go to it. But taking it from this site and hosting it as your own, is wrong.

Wrong? That's a moral decision. The question is whether or not it's *illegal*. In the US, there is no protection for sweat of the brow labor. You seem to think there is. But the courts have said otherwise. And, in fact, studies comparing the US and Europe (which does allow for such IP rights) has shown that the US has a much stronger database industry due to the *lack* of those rights.

Delivery Method

Once the data hits the internet the general consensus is that the data is public domain. This holds especially true for crime data. Many states such as Florida have a full disclosure policy that requires law enforcement to comply with all requests for information.

These companies can really only claim the method of delivery as proprietary. Everyblock.com and CrimeMapping.com peform similar services and do not make any claims on the ownership of data.

Re: Re: Re: Re: Re: Re: Re: Contract

If the distinction was not relevant I would not have mentioned it.

While not entirely free from doubt, it is likely that this matter would be viewed as a unilateral contract between these two parties...the website being the offeror and the "scraper" accepting the offer by its subsequent conduct of using the site.

Is Report See guilty of content piracy?

There is one simple rule, editorial is copyright protected. Google is the number one content and intellectual property pirate.They collect cache and distribute copyright owner content without permission and have been doing so for years. Not to mention the hacking of private wireless connected user data stolen in the EU and USA.

Report See is another content pirate, only if the reports are editorialized. Report See has indeed benefited from the labor and relationships that Public Engines took years to build, but then again every industry has competitors hopping on the bandwagon.

If Public Engines were a car dealer they would be the traditional name brand new car sales lot. Report See is leaning more toward a, Buy Here Pay Here, personality. The customer of Report See, advertisers and users have to make the decision if they like the way the company does business, disagrees with their scraping techniques, or is indifferent and will take the information wherever it is displayed.

Public Engines, if you want Intellectual Property protection actually create content through editorializing, otherwise stop the crying over someone getting for free what you have been charging the public to distribute. Because make no mistake about it, Public Engines is not being paid by the individual departments they are being paid by the taxpayers that support the PDs they contract with.

$1 Million earmark for CrimeReports.com = less real public data access

In the FY 2011 Commerce, Justice, Science and Related Agencies
Appropriations Requests, there is a $1 Million request for the Major
Cities Chiefs of Police Association which would be used to purchase
services from CrimeReports.com.
http://bennett.senate.gov/public/index.cfm?p=CommerceRequests
CrimeReports.com is a private company that makes contracts with
municipal police forces to provide their crime data to the public on
the CrimeReports.com website--but according to the PDs' specifiations.
In the process, the public information that the source crime data is
may seem to become more accessible, but this is not the case.
CrimeReports is contending in a current federal case that public crime
data becomes CrimeReports' own proprietary product in the form
provided on CrimeReports.com. (See links below and The Citizen Media
Law Project's article, "Public Engines to World: Look, But Don't Touch
the Crime Data"
http://www.citmedialaw.org/blog/2010/public-engines-world-look-dont-touch-crime-data)
In this view it would be technically illegal for someone to duplicate
or republish material from CrimeReports.com by other means, which many
PDs may use as their sole or primary means of providing public access
to crime data. (It is not access to data, it is access to a limited
representation of some data.) This is not only bad for public and
media oversight, it is bad for technologists who wish to tap public
data for research and applications.
From the appropriations document:
Project: The National Crime Map Expansion
Amount: $1,000,000
Purpose: The National Crime Map currently includes more than 800 law
enforcement agencies across the country; its aim to make incident
level crime data available to the general public at the neighborhood
level within 24 hours of occurrence.
Location: Draper, Utah
Recipient of Funds: Major Cities Chiefs of Police Association
Explanation/Justification: Very few members of the public have ready
access to street level crime information on a timely basis. This
funding will allow any law enforcement agency in the United States to
connect to the existing National Crime Map, CrimeReports.com.
Currently, more than 800 agencies have already joined at an average
total cost of $110 per month. Through this funding, CrimeReports.com
will be able to expand the map and drop the cost of integrating and
deploying the system to roughly $20/month per agency, regardless of
size, population served, or members of the community served. In
contrast, cities that build their own portals spend $50,000 - $100,000
per agency to implement local crime maps.
Further reading:
http://www.techdirt.com/articles/20100614/0208019805.shtmlhttp://www.citmedialaw.org/thr eats/public-engines-inc-v-reportsee-inc

Question

Don't forget - the cost of litigation is being used to bully

It seems clear that Public Engines is using the courts to bully potential threats to it's business. The fact is the data is owned by the tax payers (even though Dan suggests the criminals own it lol). The fact that PE went through the hassle of gathering the data and reporting it >> does not absolve the municipality from giving that exact same data to anyone requesting it